Province of N. Cotabato v. GRP

8/11/2019 Province of N. Cotabato v. GRP

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EN BANC

[ 589 Phil. 387, October 14, 2008 ]

THE PROVINCE OF NORTH COTABATO, DULY REPRESENTEDBY GOVERNOR JESUS SACDALAN AND/OR VICE-GOVERNOR

EMMANUEL PIOL, FOR AND IN HIS OWN BEHALF,PETITIONERS, VS. THE GOVERNMENT OF THE REPUBLIC OFTHE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN

(GRP), REPRESENTED BY SEC. RODOLFO GARCIA, ATTY. LEAHARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN

SULLIVAN AND/OR GEN. HERMOGENES ESPERON, JR., THELATTER IN HIS CAPACITY AS THE PRESENT AND DULY-

APPOINTED PRESIDENTIAL ADVISER ON THE PEACE PROCESS(OPAPP) OR THE SO-CALLED OFFICE OF THE PRESIDENTIAL

ADVISER ON THE PEACE PROCESS,RESPONDENTS.

G.R. NO. 183752

CITY GOVERNMENT OF ZAMBOANGA, AS REPRESENTED BYHON. CELSO L. LOBREGAT, CITY MAYOR OF ZAMBOANGA, AND

IN HIS PERSONAL CAPACITY AS RESIDENT OF THE CITY OFZAMBOANGA, REP. MA. ISABELLE G. CLIMACO, DISTRICT 1,AND REP. ERICO BASILIO A. FABIAN, DISTRICT 2, CITY OFZAMBOANGA, PETITIONERS, VS. THE GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL(GRP), AS REPRESENTED BY RODOLFO C. GARCIA, LEAHARMAMENTO, SEDFREY CANDELARIA, MARK RYAN SULLIVAN

AND HERMOGENES ESPERON, IN HIS CAPACITY AS THEPRESIDENTIAL ADVISER ON PEACE PROCESS, RESPONDENTS.

G.R. NO. 183893

THE CITY OF ILIGAN, DULY REPRESENTED BY CITY MAYOR LAWRENCE LLUCH CRUZ, PETITIONER, VS. THE GOVERNMENT

OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ONANCESTRAL DOMAIN (GRP), REPRESENTED BY SEC. RODOLFO

GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREYCANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES

ESPERON, JR., IN HIS CAPACITY AS THE PRESENT AND DULYAPPOINTED PRESIDENTIAL ADVISER ON THE PEACE

PROCESS; AND/OR SEC. EDUARDO ERMITA, IN HIS CAPACITYAS EXECUTIVE SECRETARY. RESPONDENTS.


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G.R. NO. 183951

THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE,AS REPRESENTED BY HON. ROLANDO E. YEBES, IN HIS

CAPACITY AS PROVINCIAL GOVERNOR, HON. FRANCIS H.OLVIS, IN HIS CAPACITY AS VICE-GOVERNOR AND

PRESIDING OFFICER OF THE SANGGUNIANG PANLALAWIGAN,

HON. CECILIA JALOSJOS CARREON, CONGRESSWOMAN, 1STCONGRESSIONAL DISTRICT, HON. CESAR G. JALOSJOS,CONGRESSMAN, 3RD CONGRESSIONAL DISTRICT, AND

MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF THEPROVINCE OF ZAMBOANGA DEL NORTE, NAMELY, HON. SETHFREDERICK P. JALOSJOS, HON. FERNANDO R. CABIGON, JR.,

HON. ULDARICO M. MEJORADA II, HON. EDIONAR M.ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L.

ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON. JOSEPHBRENDO C. AJERO, HON. NORBIDEIRI B. EDDING, HON.

ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON ANDHON. LUZVIMINDA E. TORRINO, PETITIONERS, VS. THE

GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACENEGOTIATING PANEL [GRP], AS REPRESENTED BY HON.

RODOLFO C. GARCIA AND HON. HERMOGENES ESPERON, INHIS CAPACITY AS THE PRESIDENTIAL ADVISER OF PEACE

PROCESS, RESPONDENTS.

G.R. NO. 183962

ERNESTO M. MACEDA, JEJOMAR C. BINAY, AND AQUILINO L.PIMENTEL III, PETITIONERS, VS. THE GOVERNMENT OF THE

REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL,REPRESENTED BY ITS CHAIRMAN RODOLFO C. GARCIA, AND

THE MORO ISLAMIC LIBERATION FRONT PEACENEGOTIATING PANEL, REPRESENTED BY ITS CHAIRMAN

MOHAGHER IQBAL, RESPONDENTS.

FRANKLIN M. DRILON AND ADEL ABBAS TAMANO,PETITIONERS-IN-INTERVENTION.

SEN. MANUEL A. ROXAS, PETITIONERS-IN-INTERVENTION.

MUNICIPALITY OF LINAMON DULY REPRESENTED BY ITSMUNICIPAL MAYOR NOEL N. DEANO, PETITIONERS-IN-

INTERVENTION,

THE CITY OF ISABELA, BASILAN PROVINCE, REPRESENTED


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BY MAYOR CHERRYLYN P. SANTOS-AKBAR, PETITIONERS-IN-INTERVENTION.

THE PROVINCE OF SULTAN KUDARAT, REP. BY HON. SUHARTOT. MANGUDADATU, IN HIS CAPACITY AS PROVINCIAL

GOVERNOR AND A RESIDENT OF THE PROVINCE OF SULTANKUDARAT, PETITIONER-IN-INTERVENTION.

RUY ELIAS LOPEZ, FOR AND IN HIS OWN BEHALF AND ONBEHALF OF INDIGENOUS PEOPLES IN MINDANAO NOT

BELONGING TO THE MILF, PETITIONER-IN-INTERVENTION.

CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,JOSELITO C. ALISUAG AND RICHALEX G. JAGMIS, AS

CITIZENS AND RESIDENTS OF PALAWAN, PETITIONERS-IN-INTERVENTION.

MARINO RIDAO AND KISIN BUXANI, PETITIONERS-IN-INTERVENTION.

MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),RESPONDENT-IN-INTERVENTION.

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD), RESPONDENT-IN-INTERVENTION.

D E C I S I O NCARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the Presidentin pursuing the peace process. While the facts surrounding this controversy centeron the armed conflict in Mindanao between the government and the Moro IslamicLiberation Front (MILF), the legal issue involved has a bearing on all areas in thecountry where there has been a long-standing armed conflict. Yet again, the Courtis tasked to perform a delicate balancing act. It must uncompromisingly delineate

the bounds within which the President may lawfully exercise her discretion, but itmust do so in strict adherence to the Constitution, lest its ruling unduly restrictsthe freedom of action vested by that same Constitution in the Chief Executiveprecisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) andthe MILF, through the Chairpersons of their respective peace negotiating panels,were scheduled to sign a Memorandum of Agreement on the Ancestral Domain


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(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in KualaLumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under theleadership of the late Salamat Hashim, it splintered from the Moro NationalLiberation Front (MNLF) then headed by Nur Misuari, on the ground, among others,of what Salamat perceived to be the manipulation of the MNLF away from an Islamic

basis towards Marxist-Maoist orientations. [1]

The signing of the MOA-AD between the GRP and the MILF was not to materialize,however, for upon motion of petitioners, specifically those who filed their casesbefore the scheduled signing of the MOA-AD, this Court issued a TemporaryRestraining Order enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning in 1996, when theGRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF PeacePanels signed the Agreement on General Cessation of Hostilities. The following year,they signed the General Framework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD bystating that the same contained, among others, the commitment of the parties topursue peace negotiations, protect and respect human rights, negotiate withsincerity in the resolution and pacific settlement of the conflict, and refrain from theuse of threat or force to attain undue advantage while the peace negotiations on

the substantive agenda are on-going. [2]

Early on, however, it was evident that there was not going to be any smooth sailingin the GRP-MILF peace process. Towards the end of 1999 up to early 2000, theMILF attacked a number of municipalities in Central Mindanao and, in March 2000, it

took control of the town hall of Kauswagan, Lanao del Norte. [3] In response, thenPresident Joseph Estrada declared and carried out an "all-out-war" against theMILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive

against the MILF was suspended and the government sought a resumption of thepeace talks. The MILF, according to a leading MILF member, initially responded withdeep reservation, but when President Arroyo asked the Government of Malaysiathrough Prime Minister Mahathir Mohammad to help convince the MILF to return tothe negotiating table, the MILF convened its Central Committee to seriously discuss

the matter and, eventually, decided to meet with the GRP. [4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitatedby the Malaysian government, the parties signing on the same date the Agreement


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complete and official copies of the MOA-AD including its attachments, and toprohibit the slated signing of the MOA-AD, pending the disclosure of the contentsof the MOA-AD and the holding of a public consultation thereon. Supplementarily,

petitioners pray that the MOA-AD be declared unconstitutional. [10]

This initial petition was followed by another one, docketed as G.R. No. 183752 ,also for Mandamus and Prohibition [11] filed by the City of Zamboanga, [12] MayorCelso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewisepray for similar injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or BangsamoroJuridical Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Ordercommanding and directing public respondents and their agents to cease and desist

from formally signing the MOA-AD. [13] The Court also required the Solicitor Generalto submit to the Court and petitioners the official copy of the final draft of the

MOA-AD, [14] to which she complied. [15]

Meanwhile, the City of Iligan [16] filed a petition for Injunction and/or DeclaratoryRelief, docketed as G.R. No. 183893 , praying that respondents be enjoined fromsigning the MOA-AD or, if the same had already been signed, from implementingthe same, and that the MOA-AD be declared unconstitutional. Petitioners hereinadditionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte, [17] Governor Rolando Yebes, Vice-Governor

Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and themembers [18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed on

August 15, 2008 a petition for Certiorari, Mandamus and Prohibition, [19] docketedas G.R. No. 183951 . They pray, inter alia , that the MOA-AD be declared null andvoid and without operative effect, and that respondents be enjoined fromexecuting the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed

a petition for Prohibition, [20] docketed as G.R. No. 183962 , praying for a judgment prohibiting and permanently enjoining respondents from formally signingand executing the MOA-AD and or any other agreement derived therefrom orsimilar thereto, and nullifying the MOA-AD for being unconstitutional and illegal.Petitioners herein additionally implead as respondent the MILF Peace NegotiatingPanel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file theirpetitions-/comments-in-intervention. Petitioners-in-Intervention include SenatorManuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano,


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including public consultation under Republic Act No. 7160 (LOCALGOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the1997 Rules of Civil Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of

the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE)as a separate state, or a juridical, territorial or political subdivisionnot recognized by law;

b) to revise or amend the Constitution and existing laws toconform to the MOA;

c) to concede to or recognize the claim of the Moro IslamicLiberation Front for ancestral domain in violation of Republic ActNo. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),particularly Section 3(g) & Chapter VII (DELINEATION,RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has theauthority to so bind the Government of the Republic of thePhilippines;

6. Whether the inclusion/exclusion of the Province of NorthCotabato, Cities of Zamboanga, Iligan and Isabela, and theMunicipality of Linamon, Lanao del Norte in/from the areas coveredby the projected Bangsamoro Homeland is a justiciable question;and

7. Whether desistance from signing the MOA derogates any priorvalid commitments of the Government of the Republic of the

Philippines. [24]

The Court, thereafter, ordered the parties to submit their respective Memoranda.Most of the parties submitted their memoranda on time.

III. Overview of the MOA-AD

As a necessary backdrop to the consideration of the objections raised in thesubject five petitions and six petitions-in-intervention against the MOA-AD, as wellas the two comments-in-intervention in favor of the MOA-AD, the Court takes anoverview of the MOA.


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The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only fourearlier agreements between the GRP and MILF, but also two agreements betweenthe GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreementon the Implementation of the 1976 Tripoli Agreement, signed on September 2,

1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes - the organic act for the

Autonomous Region in Muslim Mindanao (ARMM) [25] and the Indigenous Peoples

Rights Act (IPRA), [26] and several international law instruments - the ILOConvention No. 169 Concerning Indigenous and Tribal Peoples in IndependentCountries in relation to the UN Declaration on the Rights of the Indigenous Peoples,and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of "compact rightsentrenchment emanating from the regime of dar-ul-mua'hada (or territory undercompact) and dar-ul-sulh (or territory under peace agreement) that partakes thenature of a treaty device."

During the height of the Muslim Empire, early Muslim jurists tended to see theworld through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam)and dar-ul-harb (the Abode of War). The first referred to those lands where Islamiclaws held sway, while the second denoted those lands where Muslims were

persecuted or where Muslim laws were outlawed or ineffective. [27] This way of viewing the world, however, became more complex through the centuries as theIslamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distantStates and inter-governmental organizations, the classical division of the world intodar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn upto describe novel ways of perceiving non-Muslim territories. For instance, areas likedar-ul-mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred tocountries which, though under a secular regime, maintained peaceful and

cooperative relations with Muslim States, having been bound to each other bytreaty or agreement. Dar-ul-aman (land of order), on the other hand, referred tocountries which, though not bound by treaty with Muslim States, maintained

freedom of religion for Muslims. [28]

It thus appears that the "compact rights entrenchment" emanating from the regimeof dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements betweenthe MILF and the Philippine government - the Philippines being the land of compactand peace agreement - that partake of the nature of a treaty device, "treaty" being


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broadly defined as "any solemn agreement in writing that sets out understandings,obligations, and benefits for both parties which provides for a framework that

elaborates the principles declared in the [MOA-AD]." [29]

The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED ASFOLLOWS," and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely,Concepts and Principles, Territory, Resources, and Governance.

A. Concepts and Principles

This strand begins with the statement that it is "the birthright of all Moros and allIndigenous peoples of Mindanao to identify themselves and be accepted as`Bangsamoros.'" It defines " Bangsamoro people " as the natives or originalinhabitants of Mindanao and its adjacent islands including Palawan and the Suluarchipelago at the time of conquest or colonization , and their descendants whether

mixed or of full blood, including their spouses. [30]

Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD,

includes not only "Moros" as traditionally understood even by Muslims, [31] but allindigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds thatthe freedom of choice of indigenous peoples shall be respected. What this freedomof choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the " Bangsamoro homeland ," the ownership of which is vested exclusively in the Bangsamoro people by virtue of their prior rights

of occupation. [32] Both parties to the MOA-AD acknowledge that ancestral domain

does not form part of the public domain. [33]

The Bangsamoro people are acknowledged as having the right to self-governance,which right is said to be rooted on ancestral territoriality exercised originally underthe suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw .The sultanates were described as states or " karajaan/kadatuan " resembling a body

politic endowed with all the elements of a nation-state in the modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro peopleon the past suzerain authority of the sultanates. As gathered, the territory definedas the Bangsamoro homeland was ruled by several sultanates and, specifically inthe case of the Maranao, by the Pat a Pangampong ku Ranaw , a confederation of independent principalities ( pangampong ) each ruled by datus and sultans, none of

whom was supreme over the others. [35]

The MOA-AD goes on to describe the Bangsamoro people as "the ` First Nation '


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with defined territory and with a system of government having entered into treatiesof amity and commerce with foreign nations."

The term "First Nation" is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada, each of theseindigenous peoples is equally entitled to be called "First Nation," hence, all of them

are usually described collectively by the plural "First Nations." [36] To that extent,

the MOA-AD, by identifying the Bangsamoro people as " the First Nation" -suggesting its exclusive entitlement to that designation - departs from theCanadian usage of the term.

The MOA-AD then mentions for the first time the " Bangsamoro Juridical Entity "(BJE) to which it grants the authority and jurisdiction over the Ancestral Domain

and Ancestral Lands of the Bangsamoro. [37]

B. Territory

The territory of the Bangsamoro homeland is described as the land mass as well asthe maritime, terrestrial, fluvial and alluvial domains, including the aerial domain andthe atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic

region. [38]

More specifically, the core of the BJE is defined as the present geographic area of the ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao,Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includescertain municipalities of Lanao del Norte that voted for inclusion in the ARMM in the

2001 plebiscite. [39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities andbarangays, which are grouped into two categories, Category A and Category B.Each of these areas is to be subjected to a plebiscite to be held on different dates,years apart from each other. Thus, Category A areas are to be subjected to aplebiscite not later than twelve (12) months following the signing of the MOA-AD.[40] Category B areas, also called "Special Intervention Areas," on the other hand,are to be subjected to a plebiscite twenty-five (25) years from the signing of a

separate agreement - the Comprehensive Compact. [41]

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over allnatural resources within its " internal waters," defined as extending fifteen (15)

kilometers from the coastline of the BJE area; [42] that the BJE shall also have"territorial waters," which shall stretch beyond the BJE internal waters up to thebaselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within these territorial waters, the BJE and the"Central Government" (used interchangeably with RP) shall exercise joint


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jurisdiction, authority and management over all natural resources. [43] Notably, the jurisdiction over the internal waters is not similarly described as "joint."

The MOA-AD further provides for the sharing of minerals on the territorial watersbetween the Central Government and the BJE, in favor of the latter, through

production sharing and economic cooperation agreement. [44] The activities whichthe Parties are allowed to conduct on the territorial waters are enumerated, amongwhich are the exploration and utilization of natural resources, regulation of shipping

and fishing activities, and the enforcement of police and safety measures. [45] Thereis no similar provision on the sharng of minerals and allowed activities withrespect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation andtrade relations with foreign countries and shall have the option to establish trade

missions in those countries. Such relationships and understandings, however, arenot to include aggression against the GRP. The BJE may also enter into

environmental cooperation agreements. [46]

The external defense of the BJE is to remain the duty and obligation of the CentralGovernment. The Central Government is also bound to "take necessary steps toensure the BJE's participation in international meetings and events" like those of the ASEAN and the specialized agencies of the UN. The BJE is to be entitled toparticipate in Philippine official missions and delegations for the negotiation of

border agreements or protocols for environmental protection and equitable sharingof incomes and revenues involving the bodies of water adjacent to or between the

islands forming part of the ancestral domain. [47]

With regard to the right of exploring for, producing, and obtaining all potentialsources of energy, petroleum, fossil fuel, mineral oil and natural gas, the

jurisdiction and control thereon is to be vested in the BJE "as the party havingcontrol within its territorial jurisdiction." This right carries the proviso that, "in timesof national emergency, when public interest so requires," the Central Governmentmay, for a fixed period and under reasonable terms as may be agreed upon by

both Parties, assume or direct the operation of such resources. [48]

The sharing between the Central Government and the BJE of total production

pertaining to natural resources is to be 75:25 in favor of the BJE. [49]

The MOA-AD provides that legitimate grievances of the Bangsamoro people arisingfrom any unjust dispossession of their territorial and proprietary rights, customaryland tenures, or their marginalization shall be acknowledged. Whenever restorationis no longer possible, reparation is to be in such form as mutually determined by


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the Parties. [50]

The BJE may modify or cancel the forest concessions, timber licenses, contractsor agreements, mining concessions, Mineral Production and Sharing Agreements(MPSA), Industrial Forest Management Agreements (IFMA), and other land tenureinstruments granted by the Philippine Government, including those issued by the

present ARMM. [51]

D. Governance

The MOA-AD binds the Parties to invite a multinational third-party to observe andmonitor the implementation of the Comprehensive Compact . This compact is toembody the "details for the effective enforcement" and "the mechanisms andmodalities for the actual implementation" of the MOA-AD. The MOA-AD explicitlyprovides that the participation of the third party shall not in any way affect the

status of the relationship between the Central Government and the BJE. [52]

The "associative" relationshipbetween the Central Governmentand the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as"associative ," characterized by shared authority and responsibility. And it statesthat the structure of governance is to be based on executive, legislative, judicial,and administrative institutions with defined powers and functions in theComprehensive Compact.

The MOA-AD provides that its provisions requiring "amendments to the existinglegal framework" shall take effect upon signing of the Comprehensive Compact andupon effecting the aforesaid amendments, with due regard to the non-derogationof prior agreements and within the stipulated timeframe to be contained in theComprehensive Compact. As will be discussed later, much of the present controversy hangs on the legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions

inclusive of civil service, electoral, financial and banking, education, legislation, legal,economic, police and internal security force, judicial system and correctionalinstitutions, the details of which shall be discussed in the negotiation of thecomprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 byRodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of theMOA-AD identifies the signatories as "the representatives of the Parties," meaning


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the GRP and MILF themselves, and not merely of the negotiating panels. [53] Inaddition, the signature page of the MOA-AD states that it is "WITNESSED BY"Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia,"ENDORSED BY" Ambassador Sayed Elmasry, Adviser to Organization of the IslamicConference (OIC) Secretary General and Special Envoy for Peace Process inSouthern Philippines, and SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo,Secretary of Foreign Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister

of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement lastAugust 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cummaps of the provinces, municipalities, and barangays under Categories A and Bearlier mentioned in the discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. Ripeness

The power of judicial review is limited to actual cases or controversies. [54] Courtsdecline to issue advisory opinions or to resolve hypothetical or feigned problems, or

mere academic questions. [55] The limitation of the power of judicial review to actualcases and controversies defines the role assigned to the judiciary in a tripartiteallocation of power, to assure that the courts will not intrude into areas committed

to the other branches of government. [56]

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from ahypothetical or abstract difference or dispute. There must be a contrariety of legalrights that can be interpreted and enforced on the basis of existing law and

jurisprudence. [57] The Court can decide the constitutionality of an act or treatyonly when a proper case between opposing parties is submitted for judicial

determination. [58]

Related to the requirement of an actual case or controversy is the requirement of

ripeness. A question is ripe for adjudication when the act being challenged has hada direct adverse effect on the individual challenging it. [59] For a case to beconsidered ripe for adjudication, it is a prerequisite that something had then beenaccomplished or performed by either branch before a court may come into the

picture, [60] and the petitioner must allege the existence of an immediate or

threatened injury to itself as a result of the challenged action. [61] He must showthat he has sustained or is immediately in danger of sustaining some direct injury

as a result of the act complained of. [62]


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x x x x

GOVERNANCE

x x x x

7. The Parties agree that mechanisms and modalities for the actualimplementation of this MOA-AD shall be spelt out in theComprehensive Compact to mutually take such steps to enable itto occur effectively.

Any provisions of the MOA-AD requiring amendments to theexisting legal framework shall come into force upon the signing of a Comprehensive Compact and upon effecting the necessarychanges to the legal framework with due regard to non-derogation

of prior agreements and within the stipulated timeframe to becontained in the Comprehensive Compact. [64] (Underscoringsupplied)

The Solicitor General's arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present

controversy ripe. In Pimentel, Jr. v. Aguirre , [65] this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of

the challenged action, the dispute is said to have ripened into a judicialcontroversy even without any other overt act. Indeed, even a singularviolation of the Constitution and/or the law is enough to awaken judicialduty.

x x x x

By the same token, when an act of the President, who in ourconstitutional scheme is a coequal of Congress, is seriously alleged tohave infringed the Constitution and the laws x x x settling the dispute

becomes the duty and the responsibility of the courts. [66]

In Santa Fe Independent School District v. Doe, [67] the United States SupremeCourt held that the challenge to the constitutionality of the school's policy allowingstudent-led prayers and speeches before games was ripe for adjudication, even if no public prayer had yet been led under the policy, because the policy was being

challenged as unconstitutional on its face . [68]

That the law or act in question is not yet effective does not negate ripeness. For


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example, in New York v. United States, [69] decided in 1992, the United StatesSupreme Court held that the action by the State of New York challenging theprovisions of the Low-Level Radioactive Waste Policy Act was ripe for adjudicationeven if the questioned provision was not to take effect until January 1, 1996,because the parties agreed that New York had to take immediate action to avoid

the provision's consequences. [70]

The present petitions pray for Certiorari, [71] Prohibition, and Mandamus. Certiorariand Prohibition are remedies granted by law when any tribunal, board or officer hasacted, in the case of certiorari, or is proceeding, in the case of prohibition, withoutor in excess of its jurisdiction or with grave abuse of discretion amounting to lack

or excess of jurisdiction. [72] Mandamus is a remedy granted by law when anytribunal, corporation, board, officer or person unlawfully neglects the performanceof an act which the law specifically enjoins as a duty resulting from an office, trust,or station, or unlawfully excludes another from the use or enjoyment of a right or

office to which such other is entitled. [73] Certiorari, Mandamus and Prohibition areappropriate remedies to raise constitutional issues and to review and/or

prohibit/nullify, when proper, acts of legislative and executive officials. [74]

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3

(E.O. No. 3), issued on February 28, 2001. [75] The said executive order requiresthat "[t]he government's policy framework for peace, including the systematicapproach and the administrative structure for carrying out the comprehensive

peace process x x x be governed by this Executive Order." [76]

The present petitions allege that respondents GRP Panel and PAPP Esperon draftedthe terms of the MOA-AD without consulting the local government units orcommunities affected, nor informing them of the proceedings. As will be discussedin greater detail later, such omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate theConstitution. The MOA-AD provides that "any provisions of the MOA-AD requiringamendments to the existing legal framework shall come into force upon the signing

of a Comprehensive Compact and upon effecting the necessary changes to thelegal framework," implying an amendment of the Constitution to accommodate theMOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of theConstitution. Such act constitutes another violation of its authority . Again, thesepoints will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceedtheir authority , by violating their duties under E.O. No. 3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari,


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Prohibition, and Mandamus, and an actual case or controversy ripe for adjudicationexists. When an act of a branch of government is seriously alleged to haveinfringed the Constitution, it becomes not only the right but in fact the dutyof the judiciary to settle the dispute . [77]

B. Locus Standi

For a party to have locus standi , one must allege "such a personal stake in theoutcome of the controversy as to assure that concrete adverseness whichsharpens the presentation of issues upon which the court so largely depends for

illumination of difficult constitutional questions." [78]

Because constitutional cases are often public actions in which the relief sought islikely to affect other persons, a preliminary question frequently arises as to this

interest in the constitutional question raised. [79]

When suing as a citizen , the person complaining must allege that he has been or isabout to be denied some right or privilege to which he is lawfully entitled or that heis about to be subjected to some burdens or penalties by reason of the statute or

act complained of. [80] When the issue concerns a public right, it is sufficient that

the petitioner is a citizen and has an interest in the execution of the laws. [81]

For a taxpayer , one is allowed to sue where there is an assertion that public fundsare illegally disbursed or deflected to an illegal purpose, or that there is a wastage

of public funds through the enforcement of an invalid or unconstitutional law. [82]

The Court retains discretion whether or not to allow a taxpayer's suit. [83]

In the case of a legislator or member of Congress , an act of the Executive thatinjures the institution of Congress causes a derivative but nonetheless substantialinjury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate the prerogatives, powers and

privileges vested by the Constitution in his office. [84]

An organization may be granted standing to assert the rights of its members, [85]

but the mere invocation by the Integrated Bar of the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to

clothe it with standing. [86]

As regards a local government unit (LGU), it can seek relief in order to protect or

vindicate an interest of its own, and of the other LGUs. [87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that


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satisfy the requirements of the law authorizing intervention, [88] such as a legalinterest in the matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locusstandi, given the liberal attitude it has exercised, highlighted in the case of David v.

Macapagal-Arroyo, [89] where technicalities of procedure were brushed aside, theconstitutional issues raised being of paramount public interest or of transcendentalimportance deserving the attention of the Court in view of their seriousness,

novelty and weight as precedents. [90] The Court's forbearing stance on locusstandi on issues involving constitutional issues has for its purpose the protectionof fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution todetermine whether the other branches of government have kept themselves withinthe limits of the Constitution and the laws and have not abused the discretion

given them, has brushed aside technical rules of procedure. [91]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No.183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan(G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they, asLGUs, would suffer as their territories, whether in whole or in part, are to beincluded in the intended domain of the BJE. These petitioners allege that they didnot vote for their inclusion in the ARMM which would be expanded to form the BJE

territory. Petitioners' legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and AquilinoPimentel III would have no standing as citizens and taxpayers for their failure tospecify that they would be denied some right or privilege or there would be wastageof public funds. The fact that they are a former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence.Considering their invocation of the transcendental importance of the issues athand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano , in alleging their standing astaxpayers, assert that government funds would be expended for the conduct of anillegal and unconstitutional plebiscite to delineate the BJE territory. On that scorealone, they can be given legal standing. Their allegation that the issues involved inthese petitions are of "undeniable transcendental importance" clothes them withadded basis for their personality to intervene in these petitions.

With regard to Senator Manuel Roxas , his standing is premised on his being amember of the Senate and a citizen to enforce compliance by respondents of the


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public's constitutional right to be informed of the MOA-AD, as well as on a genuinelegal interest in the matter in litigation, or in the success or failure of either of theparties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3 rddistrict of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers;

Marino Ridao, as taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City ; and Kisin Buxani, as taxpayer, they failed to allege any properlegal interest in the present petitions. Just the same, the Court exercises itsdiscretion to relax the procedural technicality on locus standi given the paramountpublic interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace andDevelopment, an advocacy group for justice and the attainment of peace andprosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc . , anon-government organization of Muslim lawyers, allege that they stand to bebenefited or prejudiced, as the case may be, in the resolution of the petitionsconcerning the MOA-AD, and prays for the denial of the petitions on the groundstherein stated. Such legal interest suffices to clothe them with standing.

B. Mootness

Respondents insist that the present petitions have been rendered moot with thesatisfaction of all the reliefs prayed for by petitioners and the subsequentpronouncement of the Executive Secretary that "[n]o matter what the Supreme

Court ultimately decides[,] the government will not sign the MOA." [92]

In lending credence to this policy decision, the Solicitor General points out that the

President had already disbanded the GRP Peace Panel. [93]

In David v. Macapagal-Arroyo , [94] this Court held that the "moot and academic"principle not being a magical formula that automatically dissuades courts inresolving a case, it will decide cases, otherwise moot and academic, if it finds that

(a) there is a grave violation of the Constitution; [95] (b) the situation is of

exceptional character and paramount public interest is involved; [96] (c) theconstitutional issue raised requires formulation of controlling principles to guide the

bench, the bar, and the public; [97] and (d) the case is capable of repetition yet

evading review. [98]

Another exclusionary circumstance that may be considered is where there is avoluntary cessation of the activity complained of by the defendant or doer. Thus,once a suit is filed and the doer voluntarily ceases the challenged conduct, it does


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not automatically deprive the tribunal of power to hear and determine the case anddoes not render the case moot especially when the plaintiff seeks damages or prays

for injunctive relief against the possible recurrence of the violation. [99]

The present petitions fall squarely into these exceptions to thus thrust them intothe domain of judicial review. The grounds cited above in David are just asapplicable in the present cases as they were, not only in David , but also in Province

of Batangas v. Romulo [100] and Manalo v. Calderon [101] where the Court similarlydecided them on the merits, supervening events that would ordinarily haverendered the same moot notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not moot the presentpetitions. It bears emphasis that the signing of the MOA-AD did not push through

due to the Court 's issuance of a Temporary Restraining Order.

Contrary too to respondents' position, the MOA-AD cannot be considered a mere"list of consensus points," especially given its nomenclature , the need to have itsigned or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these "consensus points," foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on thepart of respondents to amend and effect necessary changes to the existinglegal framework for certain provisions of the MOA-AD to take effect .Consequently, the present petitions are not confined to the terms and provisionsof the MOA-AD, but to other on-going and future negotiations and agreementsnecessary for its realization. The petitions have not, therefore, been rendered moot

and academic simply by the public disclosure of the MOA-AD, [102] the manifestationthat it will not be signed as well as the disbanding of the GRP Panel notwithstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount publicinterest, involving a significant part of the country's territory and the wide-rangingpolitical modifications of affected LGUs. The assertion that the MOA-AD is subjectto further legal enactments including possible Constitutional amendmentsmore than ever provides impetus for the Court to formulate controllingprinciples to guide the bench, the bar, the public and, in this case, thegovernment and its negotiating entity .


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Respondents cite Suplico v. NEDA, et al . [103] where the Court did not "pontificat[e]on issues which no longer legitimately constitute an actual case or controversy [asthis] will do more harm than good to the nation as a whole."

The present petitions must be differentiated from Suplico . Primarily, in Suplico ,what was assailed and eventually cancelled was a stand-alone governmentprocurement contract for a national broadband network involving a one-time

contractual relation between two parties--the government and a private foreigncorporation. As the issues therein involved specific government procurementpolicies and standard principles on contracts, the majority opinion in Suplico foundnothing exceptional therein, the factual circumstances being peculiar only to thetransactions and parties involved in the controversy.

The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The MOA-ADwhich dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the thirdsuch component to be undertaken following the implementation of the SecurityAspect in August 2001 and the Humanitarian, Rehabilitation and DevelopmentAspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28,2008 to the Solicitor General, has stated that "no matter what the Supreme Courtultimately decides[,] the government will not sign the MOA[-AD]," mootness will notset in in light of the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn upto carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001 , inanother or in any form, which could contain similar or significantly drasticprovisions. While the Court notes the word of the Executive Secretary that thegovernment "is committed to securing an agreement that is both constitutional andequitable because that is the only way that long-lasting peace can be assured," it isminded to render a decision on the merits in the present petitions to formulatecontrolling principles to guide the bench, the bar, the public and, mostespecially, the government in negotiating with the MILF regarding AncestralDomain .

Respondents invite the Court's attention to the separate opinion of then Chief

Justice Artemio Panganiban in Sanlakas v. Reyes [104] in which he stated thatthedoctrine of "capable of repetition yet evading review" can override mootness,"provided the party raising it in a proper case has been and/or continue to beprejudiced or damaged as a direct result of their issuance." They contend that the


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policy development, shall be afforded the citizen, subject to such

limitations as may be provided by law. [107]

As early as 1948, in Subido v. Ozaeta , [108] the Court has recognized the statutoryright to examine and inspect public records, a right which was eventually accordedconstitutional status.

The right of access to public documents, as enshrined in both the 1973Constitution and the 1987 Constitution, has been recognized as a self-executory

constitutional right. [109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano , [110] the Court ruled thataccess to public records is predicated on the right of the people to acquireinformation on matters of public concern since, undoubtedly, in a democracy, thepubic has a legitimate interest in matters of social and political significance.

x x x The incorporation of this right in the Constitution is a recognitionof the fundamental role of free exchange of information in a democracy.There can be no realistic perception by the public of the nation'sproblems, nor a meaningful democratic decision-making if they aredenied access to information of general interest. Information is neededto enable the members of society to cope with the exigencies of thetimes. As has been aptly observed: "Maintaining the flow of suchinformation depends on protection for both its acquisition and itsdissemination since, if either process is interrupted, the flow inevitably

ceases." x x x [111]

In the same way that free discussion enables members of society to cope with theexigencies of their time, access to information of general interest aids the people indemocratic decision-making by giving them a better perspective of the vital issues

confronting the nation [112] so that they may be able to criticize and participate inthe affairs of the government in a responsible, reasonable and effective manner. Itis by ensuring an unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by

the people. [113]

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of

public concern [114] faces no serious challenge. In fact, respondents admit that the

MOA-AD is indeed of public concern. [115] In previous cases, the Court found that

the regularity of real estate transactions entered in the Register of Deeds, [116] the

need for adequate notice to the public of the various laws, [117] the civil service


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eligibility of a public employee, [118] the proper management of GSIS funds allegedly

used to grant loans to public officials, [119] the recovery of the Marcoses' alleged ill-

gotten wealth, [120] and the identity of party-list nominees, [121] among others, arematters of public concern. Undoubtedly, the MOA-AD subject of the presentcases is of public concern , involving as it does the sovereignty and territorialintegrity of the State , which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps andnegotiations leading to the consummation of the contract. In not distinguishing asto the executory nature or commercial character of agreements, the Court hascategorically ruled:

x x x [T]he right to information " contemplates inclusion of negotiations leading to the consummation of the transaction . "Certainly, a consummated contract is not a requirement for the exerciseof the right to information. Otherwise, the people can never exercise the

right if no contract is consummated, and if one is consummated, it maybe too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark untilthe contract, which may be grossly disadvantageous to the governmentor even illegal, becomes fait accompli . This negates the State policy of full transparency on matters of public concern, a situation which theframers of the Constitution could not have intended. Such arequirement will prevent the citizenry from participating in the publicdiscussion of any proposed contract, effectively truncating a basic right

enshrined in the Bill of Rights. We can allow neither an emasculation of aconstitutional right, nor a retreat by the State of its avowed "policy of

full disclosure of all its transactions involving public interest." [122]

(Emphasis and italics in the original)

Intended as a " splendid symmetry "[123] to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article II of theConstitution reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the Stateadopts and implements a policy of full public disclosure of all its

transactions involving public interest. [124]

The policy of full public disclosure enunciated in above-quoted Section 28complements the right of access to information on matters of public concern foundin the Bill of Rights. The right to information guarantees the right of the people todemand information, while Section 28 recognizes the duty of officialdom to give

information even if nobody demands. [125]


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The policy of public disclosure establishes a concrete ethical principle for theconduct of public affairs in a genuinely open democracy, with the people's right toknow as the centerpiece. It is a mandate of the State to be accountable by

following such policy. [126] These provisions are vital to the exercise of the freedomof expression and essential to hold public officials at all times accountable to the

people. [127]

Whether Section 28 is self-executory, the records of the deliberations of theConstitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not beenunciated or will not be in force and effect until after Congress shallhave provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediatelybut, of course, the implementing law will have to be enacted by

Congress, Mr. Presiding Officer.[128]

The following discourse, after Commissioner Hilario Davide, Jr., sought clarificationon the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. PresidingOfficer, did I get the Gentleman correctly as having said that this is nota self-executing provision? It would require a legislation by Congress toimplement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but Iaccepted an amendment from Commissioner Regalado, so that thesafeguards on national interest are modified by the clause "as may beprovided by law"

MR. DAVIDE. But as worded, does it not mean that this willimmediately take effect and Congress may provide for reasonablesafeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that

it should immediately influence the climate of the conduct of public affairs but, of course, Congress here may no longer pass a lawrevoking it, or if this is approved, revoking this principle, which is

inconsistent with this policy. [129] (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not awaitthe passing of a statute . As Congress cannot revoke this principle, it is merelydirected to provide for "reasonable safeguards." The complete and effectiveexercise of the right to information necessitates that its complementary provision


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on public disclosure derive the same self-executory nature. Since both provisions

go hand-in-hand, it is absurd to say that the broader [130] right to information onmatters of public concern is already enforceable while the correlative duty of theState to disclose its transactions involving public interest is not enforceable untilthere is an enabling law. Respondents cannot thus point to the absence of animplementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue orprocess of communication between the government and the people. It is in theinterest of the State that the channels for free political discussion be maintained tothe end that the government may perceive and be responsive to the people's will.[131] Envisioned to be corollary to the twin rights to information and disclosure isthe design for feedback mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will thepeople be able to participate? Will the government providefeedback mechanisms so that the people can participate and canreact where the existing media facilities are not able to providefull feedback mechanisms to the government? I suppose this willbe part of the government implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that ishow these courses take place. There is a message and a feedback, bothways.

x x x x

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one lastsentence?

I think when we talk about the feedback network, we are nottalking about public officials but also network of private businesso[r] community-based organizations that will be reacting. As amatter of fact, we will put more credence or credibility on the privatenetwork of volunteers and voluntary community-based organizations.So I do not think we are afraid that there will be another OMA in themaking.[132] (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, isevident in the "marching orders" to respondents. The mechanics for the duty todisclose information and to conduct public consultation regarding the peace agenda

and process is manifestly provided by E.O. No. 3. [133] The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civilsociety to the comprehensive peace process by institutionalizing the people'sparticipation.


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One of the three underlying principles of the comprehensive peace process is that it"should be community-based, reflecting the sentiments, values and principlesimportant to all Filipinos" and "shall be defined not by the government alone, nor by

the different contending groups only, but by all Filipinos as one community." [134]

Included as a component of the comprehensive peace process is consensus-building and empowerment for peace, which includes "continuing consultations on

both national and local levels to build consensus for a peace agenda and process,and the mobilization and facilitation of people's participation in the peace process."[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite toeffectuate "continuing" consultations, contrary to respondents' positionthat plebiscite is "more than sufficient consultation ." [136]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one

of which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) andother peace partners to seek relevant information, comments, recommendations aswell as to render appropriate and timely reports on the progress of the

comprehensive peace process." [137] E.O. No. 3 mandates the establishment of theNPF to be "the principal forum for the PAPP to consult with and seek advi[c]e fromthe peace advocates, peace partners and concerned sectors of society on bothnational and local levels, on the implementation of the comprehensive peaceprocess, as well as for government[-]civil society dialogue and consensus-building

on peace agenda and initiatives." [138]

In fine, E.O. No. 3 establishes petitioners' right to be consulted on thepeace agenda, as a corollary to the constitutional right to information anddisclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out thepertinent consultation. The furtive process by which the MOA-AD was designed andcrafted runs contrary to and in excess of the legal authority , and amounts toa whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner . It may, however, require him to comply with the law and

discharge the functions within the authority granted by the President. [139]

Petitioners are not claiming a seat at the negotiating table, contrary torespondents' retort in justifying the denial of petitioners' right to be consulted.Respondents' stance manifests the manner by which they treat the salient


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provisions of E.O. No. 3 on people's participation. Such disregard of the expressmandate of the President is not much different from superficial conduct toward

token provisos that border on classic lip service. [140] It illustrates a gross evasionof positive duty and a virtual refusal to perform the duty enjoined.

As for respondents' invocation of the doctrine of executive privilege, it is nottenable under the premises. The argument defies sound reason when contrasted

with E.O. No. 3's explicit provisions on continuing consultation and dialogue onboth national and local levels. The executive order even recognizes theexercise of the public's right even before the GRP makes its officialrecommendations or before the government proffers its definite propositions. [141]

It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information,comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilegein view of their unqualified disclosure of the official copies of the final draft of the

MOA-AD. By unconditionally complying with the Court's August 4, 2008 Resolution,without a prayer for the document's disclosure in camera , or without amanifestation that it was complying therewith ex abundante ad cautelam .

Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it aState policy to "require all national agencies and offices to conduct periodicconsultations with appropriate local government units, non-governmental andpeople's organizations, and other concerned sectors of the community before any

project or program is implemented in their respective jurisdictions" [142] is well-taken. The LGC chapter on intergovernmental relations puts flesh into this avowedpolicy:

Prior Consultations Required . - No project or program shall beimplemented by government authorities unless the consultationsmentioned in Sections 2 (c) and 26 hereof are complied with, and priorapproval of the sanggunian concerned is obtained: Provided, Thatoccupants in areas where such projects are to be implemented shall notbe evicted unless appropriate relocation sites have been provided, in

accordance with the provisions of the Constitution. [143] (Italics and

underscoring supplied)

In Lina, Jr. v. Hon. Pao , [144] the Court held that the above-stated policy andabove-quoted provision of the LGU apply only to national programs or projectswhich are to be implemented in a particular local community. Among the programsand projects covered are those that are critical to the environment and humanecology including those that may call for the eviction of a particular group of people

residing in the locality where these will be implemented. [145] The MOA-AD is onepeculiar program that unequivocally and unilaterally vests ownership of a


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vast territory to the Bangsamoro people, [146] which could pervasively anddrastically result to the diaspora or displacement of a great number of inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),whose interests are represented herein by petitioner Lopez and are adverselyaffected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate

fully at all levels of decision-making in matters which may affect their rights, livesand destinies. [147] The MOA-AD, an instrument recognizing ancestral domain, failedto justify its non-compliance with the clear-cut mechanisms ordained in said Act,[148] which entails, among other things, the observance of the free and priorinformed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any governmentagency the power to delineate and recognize an ancestral domain claim by mereagreement or compromise . The recognition of the ancestral domain is the raison

d'etre of the MOA-AD, without which all other stipulations or "consensus points"necessarily must fail. In proceeding to make a sweeping declaration on ancestraldomain, without complying with the IPRA, which is cited as one of the TOR of theMOA-AD, respondents clearly transcended the boundaries of their authority .As it seems, even the heart of the MOA-AD is still subject to necessary changes tothe legal framework. While paragraph 7 on Governance suspends the effectivity of all provisions requiring changes to the legal framework, such clause is itself invalid,as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject topublic scrutiny and available always to public cognizance. This has to be so if thecountry is to remain democratic, with sovereignty residing in the people and all

government authority emanating from them. [149]

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that theycannot all be accommodated under the present Constitution and laws.Respondents have admitted as much in the oral arguments before this Court, and

the MOA-AD itself recognizes the need to amend the existing legal framework torender effective at least some of its provisions. Respondents, nonetheless, counterthat the MOA-AD is free of any legal infirmity because any provisions therein whichare inconsistent with the present legal framework will not be effective until thenecessary changes to that framework are made. The validity of this argument willbe considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presentlyworded.


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In general, the objections against the MOA-AD center on the extent of the powersconceded therein to the BJE. Petitioners assert that the powers granted to the BJEexceed those granted to any local government under present laws, and even gobeyond those of the present ARMM. Before assessing some of the specific powersthat would have been vested in the BJE, however, it would be useful to turn first toa general idea that serves as a unifying link to the different provisions of the MOA-

AD, namely, the international law concept of association . Significantly, the MOA-ADexplicitly alludes to this concept, indicating that the Parties actually framed itsprovisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 onRESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentionedprovision, however, that the MOA-AD most clearly uses it to describe theenvisioned relationship between the BJE and the Central Government.

4. The relationship between the Central Government and theBangsamoro juridical entity shall be associative characterized byshared authority and responsibility with a structure of governancebased on executive, legislative, judicial and administrative institutionswith defined powers and functions in the comprehensive compact. Aperiod of transition shall be established in a comprehensive peacecompact specifying the relationship between the Central Governmentand the BJE. (Emphasis and underscoring supplied)

The nature of the "associative" relationship may have been intended to be defined

more precisely in the still to be forged Comprehensive Compact. Nonetheless, giventhat there is a concept of "association" in international law, and the MOA-AD - byits inclusion of international law instruments in its TOR- placed itself in aninternational legal context, that concept of association may be brought to bear inunderstanding the use of the term " associative " in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal powervoluntarily establish durable links. In the basic model, one state, theassociate, delegates certain responsibilities to the other, theprincipal, while maintaining its international status as a state. Freeassociations represent a middle ground between integration andindependence . x x x [150] (Emphasis and underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the FederatedStates of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory

of the Pacific Islands, [151] are associated states of the U.S. pursuant to a Compactof Free Association. The currency in these countries is the U.S. dollar, indicating


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their very close t ies with the U.S., yet they issue their own travel documents, whichis a mark of their statehood. Their international legal status as states wasconfirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSMgenerally have the capacity to conduct foreign affairs in their own name and right,such capacity extending to matters such as the law of the sea, marine resources,

trade, banking, postal, civil aviation, and cultural relations. The U.S. government,when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards asrelating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.government has the authority and obligation to defend them as if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing andusing military areas and facilities within these associated states and has the right tobar the military personnel of any third country from having access to theseterritories for military purposes.

It bears noting that in U.S. constitutional and international practice, free associationis understood as an international association between sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nation's nationalconstitution, and each party may terminate the association consistent with theright of independence. It has been said that, with the admission of the U.S.-associated states to the UN in 1990, the UN recognized that the American model of

free association is actually based on an underlying status of independence. [152]

In international practice, the " associated state " arrangement has usually been usedas a transitional device of former colonies on their way to full independence.Examples of states that have passed through the status of associated states as atransitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St.

Vincent and Grenada. All have since become independent states. [153]

Back to the MOA-AD, it contains many provisions which are consistent with theinternational legal concept of association , specifically the following: the BJE's

capacity to enter into economic and trade relations with foreign countries, thecommitment of the Central Government to ensure the BJE's participation inmeetings and events in the ASEAN and the specialized UN agencies, and thecontinuing responsibility of the Central Government over external defense.Moreover, the BJE's right to participate in Philippine official missions bearing onnegotiation of border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islandsforming part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on anyforeign affairs matter affecting them.


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These provisions of the MOA indicate, among other things, that the Parties aimedto vest in the BJE the status of an associated state or, at any rate, a statusclosely approximating it .

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our lawsas having an " associative " relationship with the national government. Indeed, theconcept implies powers that go beyond anything ever granted by the Constitutionto any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state inthis jurisdiction other than the Philippine State, much less does it provide for atransitory status that aims to prepare any part of Philippine territory forindependence.

Even the mere concept animating many of the MOA-AD's provisions, therefore,already requires for its validity the amendment of constitutional provisions,specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, andbarangays . There shall be autonomous regions in Muslim Mindanaoand the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in MuslimMindanao and in the Cordilleras consisting of provinces, cities,municipalities, and geographical areas sharing common and distinctivehistorical and cultural heritage, economic and social structures, andother relevant characteristics within the framework of thisConstitution and the national sovereignty as well as territorialintegrity of the Republic of the Philippines .

The BJE is a far more powerfulentity than the autonomous regionrecognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationshipwith the national government being fundamentally different from that of the ARMM.Indeed, BJE is a state in all but name as it meets the criteria of a state laiddown in the Montevideo Convention , [154] namely, a permanent population, adefined territory, a government, and a capacity to enter into relations with otherstates.

Even assuming arguendo that the MOA-AD would not necessarily sever any portionof Philippine territory, the spirit animating it - which has betrayed itself by its use


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of the concept of association - runs counter to the national sovereignty andterritorial integrity of the Republic .

The defining concept underlying the relationship between the nationalgovernment and the BJE being itself contrary to the present Constitution, itis not surprising that many of the specific provisions of the MOA-AD on theformation and powers of the BJE are in conflict with the Constitution and

the laws.

Article X, Section 18 of the Constitution provides that "[t]he creation of theautonomous region shall be effective when approved by a majority of the votescast by the constituent units in a plebiscite called for the purpose, provided thatonly provinces, cities, and geographic areas voting favorably in suchplebiscite shall be included in the autonomous region ." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. Buteven assuming that it is covered by the term "autonomous region" in theconstitutional provision just quoted, the MOA-AD would still be in conflict with it.Under paragraph 2(c) on TERRITORY in relation to 2(d) and 2(e), the presentgeographic area of the ARMM and, in addition, the municipalities of Lanao del Nortewhich voted for inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai,Nunungan, Pantar, Tagoloan and Tangkal - are automatically part of the BJEwithout need of another plebiscite, in contrast to the areas under Categories A andB mentioned earlier in the overview. That the present components of the ARMM andthe above-mentioned municipalities voted for inclusion therein in 2001, however,does not render another plebiscite unnecessary under the Constitution, precisely

because what these areas voted for then was their inclusion in the ARMM, not theBJE.

The MOA-AD, moreover, would notcomply with Article X, Section 20 ofthe Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the

provisions of this Constitution and national laws, the organic act of autonomous regions shall provide for legislative powers over:

(1)Administrative organization;(2)Creation of sources of revenues;(3)Ancestral domain and natural resources;(4)Personal, family, and property relations;(5)Regional urban and rural planning development;(6)Economic, social, and tourism development;(7)Educational policies;


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x x x x

b) Petition for Delineation. -- The process of delineating a specificperimeter may be initiated by the NCIP with the consent of the ICC/IPconcerned, or through a Petition for Delineation filed with the NCIP, by amajority of the members of the ICCs/IPs;

c) Delineation Proper. -- The official delineation of ancestral domainboundaries including census of all community members therein, shall beimmediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned. Delineation will be done incoordination with the community concerned and shall at all times includegenuine involvement and participation by the members of thecommunities concerned;

d) Proof Required. -- Proof of Ancestral Domain Claims shall include thetestimony of elders or community under oath, and other documentsdirectly or indirectly attesting to the possession or occupation of thearea since time immemorial by such ICCs/IPs in the concept of ownerswhich shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs andtraditions;

2) Written accounts of the ICCs/IPs customs andtraditions;

3) Pictures showing long term occupation such asthose of old improvements, burial grounds,

sacred places and old villages;4) Historical accounts, including pacts andagreements concerning boundaries entered intoby the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;6) Anthropological data;7) Genealogical surveys;8) Pictures and descriptive histories of traditional

communal forests and hunting grounds;9) Pictures and descriptive histories of traditional

landmarks such as mountains, rivers, creeks,ridges, hills, terraces and the like; and

10)Write-ups of names and places derived from thenative dialect of the community.

e) Preparation of Maps. -- On the basis of such investigation and thefindings of fact based thereon, the Ancestral Domains Office of the NCIPshall prepare a perimeter map, complete with technical descriptions, anda description of the natural features and landmarks embraced therein;

f) Report of Investigation and Other Documents. -- A complete copy of


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the preliminary census and a report of investigation, shall be preparedby the Ancestral Domains Office of the NCIP;

g) Notice and Publication. -- A copy of each document, including atranslation in the native language of the ICCs/IPs concerned shall beposted in a prominent place therein for at least fifteen (15) days. A copyof the document shall also be pos ted at the local, provincial and regional

offices of the NCIP, and shall be published in a newspaper of generalcirculation once a week for two (2) consecutive weeks to allow otherclaimants to file opposition thereto within fifteen (15) days from date of such publication: Provided, That in areas where no such newspaperexists, broadcasting in a radio station will be a valid substitute:Provided, further, That mere posting shall be deemed sufficient if bothnewspaper and radio station are not available;

h) Endorsement to NCIP. -- Within fifteen (15) days from publication,and of the inspection process, the Ancestral Domains Office shallprepare a report to the NCIP endorsing a favorable action upon a claimthat is deemed to have sufficient proof. However, if the proof is deemedinsufficient, the Ancestral Domains Office shall require the submission of additional evidence: Provided, That the Ancestral Domains Office shallreject any claim that is deemed patently false or fraudulent afterinspection and verification: Provided, further, That in case of rejection,the Ancestral Domains Office shall give the applicant due notice, copyfurnished all concerned, containing the grounds for denial. The denialshall be appealable to the NCIP: Provided, furthermore, That in cases

where there are conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the Ancestral Domains Office shall cause thecontending parties to meet and assist them in coming up with apreliminary resolution of the conflict, without prejudice to its fulladjudication according to the section below.

x x x x

To remove all doubts about the irreconcilability of the MOA-AD with the presentlegal system, a discussion of not only the Constitution and domestic statutes, but

also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines "adoptsthegenerally accepted principles of international law as part of the law of theland."

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons ,[158] held that the Universal Declaration of Human Rights is part of the lawof the land on account of which it ordered the release on bail of a detained alien of


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Russian descent whose deportation order had not been executed even after twoyears. Similarly, the Court in Agustin v. Edu [159] applied the aforesaidconstitutional provision to the 1968 Vienna Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of "peoples,"understood not merely as the entire population of a State but also a portionthereof. In considering the question of whether the people of Quebec had a right to

unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE RESECESSION OF QUEBEC[160] had occasion to acknowledge that "the right of apeople to self-determination is now so widely recognized in internationalconventions that the principle has acquired a status beyond `convention' and isconsidered a general principle of international law."

Among the conventions referred to are the International Covenant on Civil andPolitical Rights[161] and the International Covenant on Economic, Social andCultural Rights[162] which s tate, in Article 1 of both covenants, that all peoples, byvirtue of the right of self-determination, "freely determine their political status andfreely pursue their economic, social, and cultural development."

The people's right to self-determination should not, however, be understood asextending to a unilateral right of secession. A distinction should be made betweenthe right of internal and external self-determination. REFERENCE RE SECESSIONOF QUEBEC is again instructive:

"(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the rightto self-determination of a people is normally fulfilled throughinternal self-determination - a people's pursuit of its political,economic, social and cultural development within the frameworkof an existing state. A right to external self-determination (whichin this case potentially takes the form of the assertion of a rightto unilateral secession) arises in only the most extreme of casesand, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following

statement from the Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the freeassociation or integration with an independent State or theemergence into any other political status freely determined by a

people constitute modes of implementing the right of self-determination by that people . (Emphasis added)

127. The international law principle of self-determination hasevolved within a framework of respect for the territorial integrity


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of existing states. The various international documents that supportthe existence of a people's right to self-determination also containparallel statements supportive of the conclusion that the exercise of such a right must be sufficiently limited to prevent threats to an existingstate's territorial integrity or the stability of relations between sovereignstates.

x x x x (Emphasis, italics and underscoring supplied)The Canadian Court went on to discuss the exceptional cases in which the right toexternal self-determination can arise, namely, where a people is under colonial rule,is subject to foreign domination or exploitation outside a colonial context, and -less definitely but asserted by a number of commentators - is blocked from themeaningful exercise of its right to internal self-determination. The Court ultimatelyheld that the population of Quebec had no right to secession, as the same is notunder colonial rule or foreign domination, nor is it being deprived of the freedom tomake political choices and pursue economic, social and cultural development, citing

that Quebec is equitably represented in legislative, executive and judicial institutionswithin Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in theREPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGALASPECTS OF THE AALAND ISLANDS QUESTION.[163] There, Sweden presented tothe Council of the League of Nations the question of whether the inhabitants of theAaland Islands should be authorized to determine by plebiscite if the archipelagoshould remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an InternationalCommittee composed of three jurists to submit an opinion on the preliminary issueof whether the dispute should, based on international law, be entirely left to thedomestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties,the right of disposing of national territory is essentially anattribute of the sovereignty of every State. Positive InternationalLaw does not recognize the right of national groups, as such, toseparate themselves from the State of which they for